American Manufacturers Mutual Insurance v. Quintero

Order, Supreme Court, New York County, entered March 13, 1979, granting motion of petitioner insurance company to stay arbitration, reversed, on the law, and matter remanded for hearing, without costs, as to whether one of the vehicles involved in the accident alleged was operated at that time without permission of the owner. Respondent-appellant George Quintero was allegedly injured as a result of an accident in which a vehicle owned and operated by him was struck by a truck owned by the Caldwell Truck Company and insured by Bankers & Shippers Insurance Company. A factual issue is clearly presented as to whether at the time of the accident the truck was being operated by an unknown party without permission of the owner. If the truck were in fact then being operated without permission of the owner, the respondent-appellant would clearly be entitled to arbitration. (See Insurance Law, § 167, subd 2-a; cf. Matter of Amica Mut. Ins. Co. [Selected Risks Ins. Co.], 70 AD2d 811.) A hearing is accordingly necessary. Concur—Kupferman, J. P., Sandler, Sullivan, Silver-man and Carro, JJ.